Unofficial Opinion 97-22

The geographic jurisdiction of a city housing authority established under the Housing Authority Law is governed primarily by the definition of "area of operations" in O.C.G.A. § 8-3-3(1).

As its attorney, you have asked for an opinion which identifies and construes the law providing for the geographical "area of operation" of the Housing Authority of the City of Jonesboro (the "Authority"). Your particular focus is the Authority's administration of a federal assistance program, "Section 8" housing assistance payments under 42 U.S.C. † 1437f. You have indicated that the Authority is established pursuant to the Housing Authorities Law, O.C.G.A. † 8-3-1.

The power of such an authority to conduct a Section 8 program derives from two sources: [1] The general power "[w]ithin its area of operation, to . . . carry out . . . housing projects," O.C.G.A. † 8-3-30(a)(2), i.e., "any undertaking . . . [t]o provide . . . living accommodations for persons of low income," O.C.G.A. † 8-3-3(10)(A)(ii); cf. Housing Auth. v. Jefferson, 223 Ga. App. 60, 60-61 (1996); [2] the specific power to accept federal financial assistance "in aid of . . . any housing project within its area of operation." O.C.G.A. † 8-3-32. Thus, both powers are confined to an authority's "area of operation."

"Area of operation," in the case of a housing authority of a city, means such city and the area within ten miles of the territorial boundaries thereof but does not mean any area which lies within the territorial boundaries of any other city unless a resolution shall have been adopted by the governing body of such other city declaring that there is a need for the city housing authority to exercise its powers within the territorial boundaries of said other city. No city, county, regional, or consolidated authority shall operate in any area in which an authority already established is operating without the consent by resolution of the authority already operating therein.

O.C.G.A. † 8-3-3(1).

To summarize this definition, a city housing authority may operate in the city and in the area "within ten miles" of the city. There are two limitations. First, to operate within another city requires a resolution of the other city declaring the need. Second, no city authority may operate "in any area in which an authority already established is operating," unless the prior authority issues a resolution of consent.

A city authority may also exercise "all of its powers" within another municipality in areas outside its "area of operation" if the second municipality adopts a resolution of need and makes particular, statutory findings. O.C.G.A. † 8-3-15(a), (b). If the second city has established a housing authority authorized to operate within it, that authority must also adopt a resolution of need. O.C.G.A. † 8-3-15(a). The second city is not precluded from later establishing its own authority. However, if the extraterritorial authority issues bonds for a project within the second city, "no other housing authority may undertake a project" within the second city without the consent of the extraterritorial authority. O.C.G.A. † 8-3-15(c), (d).

An application of the preceding Code Sections would require a determination of geographical facts (e.g., the locations of city boundaries and the ten mile perimeters); a determination of historical facts (e.g., whether there is "any area in which an authority already established is operating"); and a determination of legal sufficiency (e.g., whether consents and resolutions satisfy statutory requirements). See Brown v. Housing Auth., 240 Ga. 647, 648-50 (1978).

You have also asked that we address the application of the "Intergovernmental Contracts" clause of the Georgia Constitution. It provides in pertinent part that any county or municipality may contract with one another or with any public authority "for the provision of services." Ga. Const. 1983, Art. IX, Sec. III, Para. I(a). "[S]uch contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide." Id. In other words, any intergovernmental contract for services under the Housing Authority Law would be governed by that law, including its provisions for "area of operation."

The Constitution also addresses extraterritorial activities in its preceding Section. It specifically empowers cities and counties to provide certain services, including public housing. Ga. Const. 1983, Art. IX, Sec. II, Para. III(a)(8). They may not do so inside one another's boundaries "except by contract," "[u]nless otherwise provided by law." Ga. Const. 1983, Art. IX, Sec. II, Para III(b) (emphasis added). This limitation on cities and counties applies to their respective authorities. Brown v. Housing Auth., 240 Ga. 647, 651 (1978). However, in the particular topic of public housing, the Housing Authority Law provides "otherwise," as discussed above, in providing for city housing authority operation ten miles outside the municipal boundaries and for resolutions in lieu of contracts. See Kelley v. City of Griffin, 257 Ga. 407 (1987) (law "otherwise" provides for condemnation for sewer project outside city); Coweta County v. City of Newnan, 253 Ga. 457, 458-60 (1984) (extraterritorial water service).

As explained in Kelley v. City of Griffin and Coweta County v. City of Newnan, just cited, the preceding Georgia Constitution provided a narrower exception to the "contract" requirement. Instead of providing, "Unless otherwise provided by law," the earlier version provided, "unless otherwise provided by any local or special law." 1972 Ga. Laws 1552; Ga. Const. 1976, Art. IX, Sec. IV, Para. II. At a time when this constitutional language was in effect, the Georgia Supreme Court held that it prevented a city housing authority from operating within the ten mile perimeter outside its municipal boundary without a contract, unless a local or special law provided otherwise. As a general law rather than a special or local law, the Housing

Authorities Law was held not to provide an exception. Brown v. Housing Auth., 240 Ga. 647, 651 (1978). However, the Court did not expressly declare the definition of "area of operation" in the Housing Authority Law unconstitutional, nor did it need to. Both the Constitution and the Housing Authority Law placed limitations on extraterritorial operations, all of which had to be satisfied but none of which were mutually exclusive. (For example, a city authority could not operate in another city within the ten mile limit without a contract, and even with a contract, a city authority could not operate more than ten miles outside except in compliance with Code Section 8-3-15.) Cf. Kelley v. City of Griffin, 257 Ga. 407, 408-409 (1987) (current contract requirement and extraterritorial condemnation under Revenue Bond Law not mutually exclusive); Brown v. Housing Auth., 240 Ga. 647, 651 (1978) (city housing authorities not abolished by contract requirement).

The decision in Brown did not invalidate any part of the current Housing Authority Law. Moreover, the revision of the Constitution in 1983 broadened the exception to the "contract" requirement such that local governments now are empowered to provide public housing services inside one another's boundaries as "provided by law." Therefore, it is my unofficial opinion that the geographic jurisdiction of a city housing authority established under the Housing Authority Law is governed primarily by the definition of "area of operations" in O.C.G.A. † 8-3-3(1).